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s. he had only four years. he nominated and confirmed 11 women to court of appeals over 25 district courts. no president ever went back fully to the way it was. president reagan did not want to be outdone. he determined to appoint the first woman to the us supreme court. he made a nationwide search. he came up with a superb choice. justice sandra day o'connor. i had hoped when i was in law school that i would be able to get the job as a lawyer. [laughter]
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i was told the story but we had a woman lawyer once and she was dreadful. [laughter] how many men lawyers did you have? that did not turn out well? [laughter] the change i have seen in my lifetime is exhilarating and the change in the federal judiciary is to the credit of president jimmy carter. >> speaking of your female colleagues, after justice sandra day o'connor retired in 2006, your the only thing of justice on the supreme court until justice sonia sotomayor joined the court in 2009. justice elena kagan followed, joining the court in 2010. you are now one of three women on the supreme court. can you compare for us your experience as the only woman on the court with that of being one of two female justices and that
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of being one of three female justices? >> the national association of women judges forecast what would come so they have a reception for the justice o'connor and me in the fall of 1993 and they gave us t-shirts. [laughter] i am sandra, not rude and mine said i am route, not sandra. [laughter] every year i was on the court with sandra, invariably, one lawyer or another would call me justice o'connor.
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they heard a woman's voice. [laughter] it did not matter that we did not sound at all alike. [laughter] when center-left, it was lonely. it was really lonely. at least when she was there, she was a tall woman and then there was this rather small person until i was joined by justice sonia sotomayor and just as keychain. if you -- and justice elena kagan. if you watch a case in the court, you will see a very lively bench. my sisters of the court are not shrinking violets. [laughter] have very active -- they are very active participants in the arguments. i do think that justice sonia sotomayor is in competition with justice scalia to see who can ask the most questions. [laughter] [applause]
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with three, we look like we are there to stay. we are no longer curiosities. >> i would like to go back in time a bit to the 1970's when there was a strong effort to amend the constitution with the equal rights amendment, an effort that was unsuccessful. from your perspective as someone who engaged her entire life in gender equality whether you believe the failure of the equal rights amendment had a long-term impact on the cause of gender equality or whether, ultimately, the necessary tools have been found in the equal protection clause or other parts of the constitution? the second part of that, i am wondering how you feel as a pioneer in gender equality about
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the progress that has been made to date and what you believe may be the principal barriers remaining to progress in the future? >> that's a multi part question. [laughter] let's start with the era -- it was not something new. the equal rights amendment was first framed by the national women's party. it was the more progressive wing of the women's movement, the women's suffrage movement, women who were not content with the vote but wanted full equality and so they introduced the equal rights amendment in 1923 and it was introduced every year thereafter. it did not take steam until martha griffith from michigan took it on as our cause and when she did, she said -- there is nothing that this
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amendment seeks to accomplish that could not be done if the courts would interpret the equal protection clause the way they should interpreted it to include all people and not just some of them. still, the era was a very important symbol and i hope it will one day become part of this constitution for a simple reason -- i am addressing a class of schoolchildren and i can point to the first amendment and the protection of freedom of speech and of the press, there is no statement that men and women are citizens -- are people of equal status -- status before the law. there is no statement.
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i think that statement belongs in our constitution to say that this is a value as fundamental as the ones that are already enshrined. in the constitution. it may be just a simple but it is an important symbol. as far as what the courts have done, i got a book to sign from the civil rights commission -- this was in the middle 1970's -- we were going through the united states code identifying all laws that differentiated on the basis of gender. almost all of those laws are gone. there are a few in the immigration and nationality area but for the most part, in state and federal law books, the explicit gender-based discrimination is gone.
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what remains, i can perhaps best explained by remembering what was like to go to a symphony orchestra concert when i was young. i never saw a woman in the symphony orchestra. some brilliant person thought of it early solution to the problem. they would drop a curtain between the audition is and the person who was being auditioned. with that, with the audition is not knowing whether it is a man or woman playing, suddenly, the appearance of women in symphony orchestras grew and grew. i was telling this story at a music festival not long ago when a young violinist said to me -- but you missed one thing, we all
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addition [inaudible] so the judges will not know if it is a woman coming onstage. what that reflects is an unconscious bias. people see a woman and they assume -- it was a music critic for the " the new york times" that he vowed he could tell a difference between a woman's planning and the man's point and they put into the test and he failed miserably. it is sad. it is an unconscious bias. there was a great case and 1970's brought by my colleague at columbia. it was against at&t. it was about positions for women in middle management. the women found on the various tests up until the last one and
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the last one was a total person test. at meant there was an interviewer, a candidate for promotion, and women filled disproportionately. why? it was not that the interviewer intended to discriminate. it was just he felt uncomfortable with someone who looked like -- he felt more comfortable with someone who looks like himself. the woman was different. it is getting past the unconscious bias that exists, still exists, that is a high hurdle to overcome. it has been mentioned that it is a balance to have a family life in which you thrive and work
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life. i was blessed to be married for 56 years to a man who was my partner and everything. he had the idea when my daughter was born that a child's personality is formed in her first year of life. he was the primary feeder of jane and he learned that that was not necessarily so but, in any event, all my life, he has been my biggest booster. i am happy to see that in my children's life. their marriages are that way as well -- they are two parents, two people who have work lives that they thrive in.
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>> i was told once i did not belong in navy flight training but i got in the program and spent 10 years on active duty and assault great strides made in the attitude of military women in the cockpit of aircraft but there is room for improvement. is there a similar experience in law? >> i would like to tell you a story so you will know how far we have come. we have not gotten all the way but one of my favorite clients was a captain in the air force. i had hoped that her case could be the first of reproductive freedom case to reach the supreme court.
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this was her story -- she was serving in vietnam when she became pregnant. this is 1970. she was told by the commander of the base, you have a choice -- you can get an abortion on base which many military bases offered to women in service or dependents of men and service at that time -- or you can leave the service. susan said i cannot have an abortion, i am a roman catholic i would accumulate might leave time for this birth. i made arrangements to have the child adopted at birth.
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pregnancy was a moral and administrative grounds for discharge and that was that. susan was sent back to the west coast where she was represented by the aclu of the state of washington brilliantly. they've managed to stay her discharge month by month. lost in the district court. she lost in the ninth circuit but with an excellent dissent. [laughter] the supreme court to occur case and of the then solicitor general who had been the dean of the first law school i attended saw real damage potential for the government in her case. he convened the military brass and said that rule about pregnancy being an automatic grounds for discharge is not right for our time. you should immediately way of
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her discharge and change the regulation. for the future. and that's what happened. law students know what that meant for our case. the government had given susan everything she was asking for. so the government immediately moved to have the case -- her case dismissed as moot. i called capt. struck and astor issues missing anything. she said i am not any pay or allowances. i would not have chosen to be assigned to my air force base but, i cannot say they were punishing me for that. she said there is one thing. all my life, i have dreamed of becoming a pilot but the air force does not give flight training to women. this was in 1972.
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we had this conversation and we left because we knew then that it was an impossible dream. , that the air force would give flight training to women. now, it would be unthinkable for them to reserve flight training for men only. we have come a long, long way. >> regarding the court's deliberation process, as the presence of three women on the supreme court now altered the to stay her discharge month by month. lost in the district court. she lost inway the members of tt think about and discuss the cases that come before them and perhaps in how they decide them? >> i should start with a quote from the minnesota supreme court justice, dean coyne. justice o'connor and i have
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often retold this story -- at the end of the day, a wise old man and a wise old woman will reach the same judgment. i have to follow that up by saying that we each bring to the table our own life experience including the three of us having grown up female. we can help our colleagues understand some things that they might not understand things so well had we not been there. there is one case in particular a few years ago about a 13-year- old girl who was suspected of having what turned out to be an advil -- ibuprofen.
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was suspected of having pills and they took her to the girls' bathroom and strip searched her. and her mother was incensed to find out what had happened to her daughter. she brought a case in 1983 against the school officials. some of my colleagues made light of it. he said i remember being a 13- year-old boy and we did not think anything of changing our clothes. i said in the courtroom that there is a difference between a 13-year-old girl and a 13-year- old boy and the embarrassment
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that karlfeldt. suddenly -- that that curl felt. - that girl felt. they understood this was a terrible thing to do to the young girl and of course, she won the case. [laughter] >> last year, the nation was riveted to by the court's argument and decision in the national federation of independent business case which up held the individual mandate of president obama's health care reform legislation. for those of us who are observers of the court, apart from the case, what lessons might we learn from the experience of that case?
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>> i hope it is a case that will be taught in law school. i fully expect that my dissent saying that this legislation fit within the commerce clause easily -- that that would someday become block of the land. i was astonished, frankly at the majority view about that case but i think it is a wonderful teaching tool for students and, as you know, bill law was upheld. the chief justice decided that it did not fit within the commerce power but the tax power was very broad. so what the law called a penalty was in fact attacks and it was
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upheld. on that basis. i think the commerce clause will turn out to be an aberration. you can compare it the way it was before 1937 when the court was commonly referred to as nine old men and they were striking down economic and social legislation from the states, from the administration. but then the social security act was passed and in 1937, the court upheld it. i thought that social security, 1937, health care, in 2012 -- they should go the same way. i said i fully expect that my
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view which was shared by three of my colleagues on the commerce clause was one that has staying power. so - [laughter] >> looking ahead, do you feel you have any unfinished business in your career on or off the court? >> i will do this job as long as i am able to do it the way it needs to be done. [applause] apart from that, i will not read any books - [laughter]
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there will be books written about me like it or not and i would prefer not to but -- [laughter] so, i already mentioned i would like to see in my lifetime -- i would like to see women get fired up about the equal rights amendment so we will have that in our constitution. i would like to see an end to what i call this unconscious discrimination. being a judge -- it is a pretty good job to have -- think of my colleague justice john paul stevens who remained on the court until he was 90 and is still an avid golfer and tennis player and has recently written a book but not about himself but about the five chiefs he has known from the time he was a law
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clerk to the time he retired from the court. next question -- [laughter] >> you have had an amazing career and are leaving your legacy in below. looking back in your life, although there is still more to do, is there anything you would do differently? >> it's a question i don't ask myself. i will give you two pieces of advice i was given in that regard. when i was a brand new judge on the d.c. circuit, one of my senior colleagues said, "ruth, i have been at this business a long time and one thing i would like to impart to you.
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do your best job in each case but when it's over, when the opinion is out, do not look back. do not worry about things that have passed, go on to the next case and give it your all." that corresponds to advise my mother gave me which she summed up in the phrase "be a lady." by that she meant do not allow distracting and motions to overwhelm you. and there will get you nowhere. jealousy is even worse. and remorse -- these are all the motions that sat pure energy and do nothing productive.
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i do not look back. i look forward to what is on my plate each day. >> you have dissented in some of the court's most controversial and far-reaching decisions of the past couple of decades. i have in mind bush reverses course, the case that halted the balloting in the 2000 presidential election and citizens united, the case that invalidated the ban on corporate campaign expenditures. in cases such as these, cases where belote takes a sudden turn in a different direction in a high-profile area, do you ever fear for the court's reputation as a result of these kinds of decisions? as a follow-up, how difficult is it to participate in the deliberations and the one vote
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away from a very different results? >> first, let me comment on bush v gore. it was one-of-a-kind and the court has never site to that opinion -- crted @ opinion in any case and i hope it will forever remain that way. it happened, it is over, and that's it for bush v gore. [laughter] citizens united is something else. that was a very wrong decision. but, as a great man once said, andain't over til it's over the court will have a chance in the years ahead to correct its error. think of the free speech to descend of holems and aggrandize
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in the 1920's. -- bradneis now it is below of the land. when one is on the descent side, if it is something congress can fix, then you hope your descent will engage legislation. if it is a matter of constitutional interpretation, the only thing that can change it is the court will overrule its decision and you write the dissent looking toward a future court and a correction of the error in which your -- into which your colleagues have fallen. [laughter] >> do these cases ever cause worry about the court's reputation or do you feel that
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the courtroom -- reputation will remain intact? >> we all care very much about the institution. we want to leave it in as good shape as we found it. the supreme court, i think, is unique in the world. when i met with high court judges from other places, i sometimes ask -- sometimes we have a judgment and we say it and then the government does not follow it to. . think of some of the key decisions and the supreme court. think of the seizure case when the court said that president truman cannot take over the steel mills. give them back. immediately, the president ordered the mils return to their
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owners or a more recent example -- very dramatic example -- president nixon is told, not by the supreme court but by a federal district court judge, i need those tapes as evidence in criminal proceeding. turn them over. the president did and he resigned from office the next day. we know that is a very precious thing that we have, that even bush v gore, however wrong i thought the decision was, there was no rioting in the street and people accepted that bush would be our president. [laughter] life went on. one thing that the press seldom notice is is that, yes, we divide a 5-4 in important cases
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but we are unanimous more often than we are 5-4. thank goodness for the ordinary case is that we hear, the ordinary statutory cases that do not divide along party lines. so -- yes, we are very much concerned with the reputation of the court. us are. -- all of us are. >> how difficult was it for you to make the transition from being that of an advocate to that of a journalist. >> i don't think i have made the transition. [laughter] [applause] you are always hoping to persuade your colleagues and sometimes you are successful. some years ago, my senior colleague assigned a descent to me. the fullnessente - of time, the decision came out
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6-3 and my decision was the decision for 6. if you don't prevail at the conference and the vote goes the other way, you are hoping that your descent will be so powerfully persuasive that maybe you will pick up another vote. it does not happen very often. it is rare, but hope springs eternal. [laughter] so- >> you mentioned some things you would like to see to change and improve in the future like resurrecting the equal rights amendment. thinking about the way the supreme court carries out its work in particular, is there anything you would like to see changed during your time or beyond? >> there is one thing that i would night -- not like to see change. the supreme court is a rather
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old-fashioned institution. when we sit down of our conference table, it is nothing like this law school. there is no laptop. there is only a pad of paper and pencil to take notes with. it is about the last place in town, the town of washington, d.c., where the office holders actually do their own work. [laughter] [applause] staff.t have a large in my chambers, i have four law clerks, a chamber aid, and two secretaries and i am totally dependent on them. that is what we are. it is that small. there is eight of us. and a congressional office and you will find huge
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staffs. that way of operating i hope will never change. some things -- people complain that we allow only half hour asides for argument. i do not think we would benefit from more time. after all, it is the written part. it is the record. it is what the judges in the courts that previously heard the case have said. it is their right thing that stays with us when we go back to chambers. all argument, while it is important, it is seldom -- it seldom determines the outcome of
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the case. i would not like to change that. you did not put this in your question but i am often asked, what about cameras in the courtroom? some federal courts do allow cameras. stays withi think it would be as can be for a trial court to allow the proceeding to be televised unless the defendant wants the cameras. the concern in our court is if the argument is televised, people will get the wrong impression of the appellate process which is mostly the right things. they will think that is a conflict between two lawyers and the advocates will win. that is not the way it works. that is one concern. i know that in many courts,
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including the supreme court of to united kingdom, f, televise their proceedings. perhaps it is inevitable. that that will be part of the way the supreme court operates. that will come later rather than sooner. >> i have reached my last question. you will not be surprised it is a multi part question. [laughter] thinking back or the last two decades that you have been on the court, what do you think have been the court's most important decisions during that time? secondly, what do you think has been the impact of those decisions on the country and on the court?
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>> citizens united is probably the most important in that the court had an opportunity to stop making elections turn on who can raise the most money. that opportunity has passed and i hope that someday that decision will be overturned. rather than talk about the past, let me tell you about some of the cases that are on the docket this year. it is going to be an important year for the court. we heard, in october, a case involving the affirmative action plan of the university of texas. you will remember that -- i
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think it was a 1948 case -- when the university of texas had no legal education for african americans and the rather than accept one, they created a separate and highly unequal law school. that is the with the university of texas once was. now they are enthusiastically pursuing a diverse student body. that was a case we heard in october. this very month, we will hear a case involving the voting rights act, originally passed in 1965, and recently renewed for 25 years by overwhelming majorities of both parties in congress.
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it is being challenged in our court. i should tell you what the act does for those who don't know -- in states and some parts of states, in the bad old days that did not prevent african- americans to vote, that used to various devices to keep them from the polls, those states cannot change their election laws without getting pre- clearance from the attorney general for a three-judge federal court in the district of columbia shelby county, alabama has brought a case to us. it is a long time since 1965. there is no reason why we should be treated any differently than, say, a county in maine. that keepave tests people from the polls anymore
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so, court, police declared the extension of the voting rights act unconstitutional. there is that case. another one in balls taking dna cent -- another one involves taking dna samples from everyone arrested. everyone rested is not ultimately convicted but that is another case. in march, we will hear two cases -- one involves prop 8 from california, the california supreme court having held that the ban on same-sex marriage was unconstitutional. people in california amended the constitution. too bad same-sex marriage. that amendment to the state
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constitution is not compatible with the equal protection clause. then we have the difference of marriage act case the next day. [laughter] that was congress saying, for federal purposes, same-sex marriage is not recognized and that means that all the federal benefits like being able to file a joint return, getting a marital deduction, like getting social security benefits on your spouse's account -- you do not get those if your partner is of the same sex. also, would have a full faith and credit clause that says every state has to respect the judgment of every other state. but the full faith and credit clause is not obliged states -- north dakota does not have to recognize their marriage from
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massachusetts, from new york or the other states. those are two tremendously important cases. it will be people -- it was a blockbuster term last time. this will exceed last term. >> can i ask a question? >> you may ask a question. >> i have two questions. [laughter] the first is this -- we have many law professors in law schools who write law review articles. what would you recommend to law professors and students the right law review articles to put in their articles that would be more helpful to supreme court justices? >> there are two kinds of
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articles. there is the kind that they are writing for their home crowd. iny're not interested imposing the courts. they are writing in a language that is not acceptable to us. one thing i tell law students every year -- lawyers and judges are very busy people and do not have time to re-read a sentence or paragraph. every sentence that goes into my opinion has to be something that can be absorbed in one gulp, that does not have to be re- read. some of the more celestial articles -- [laughter] maybe they want you to ponder over what they meant. maybe they consider they are operating on a high philosophical plane. the best thing i can have, if there is a hard issue, is a law
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professor's analysis of that field. i try to find out when we have a case, is there something written about this that pulls together the various strands. often, i cannot find that but when i do, it is a gold mine. >> thank you, that was very helpful. the second question is the hard question. if you were a constitutional law professor, what would be the most important cases you would discuss in a short period time? what would you put your finger on as five cases? >> i have a number one candidate. see if you agree with me. not bmi, way back.
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you got it. [laughter] until then, the supreme court was not very highly thought of. in fact, the first chief justice, john jay, went off to england to negotiate a treaty and while he was away, he was elected governor of the state of new york and he said all things considered and this court is not going anyplace, i would rather be governor of the state of new york. along came the great chief justice marshall and he said that the court has the power to review ordinary legislation for compatibility with the nation's highest law, the constitution. that was something that judges were not doing around the world. in fact, until after world war
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the new constitution installed some form of judicial review for constitutionality, we were the only court doing that. marshall took a country that consists of seven cellists states and helped weld them into one nation and he made the court the important institution that it has remained. you said five -- the virginia case people think brown vs board df ed was the big case in 1954. it was not until 1967 that the
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court said a ban on interracial marriage violates the equal protection clause. it was not all that long ago, at least by my standards, and they think mildred loving died a couple of years ago. that was a case of major importance. people express views about other cases. miranda, i think, is a great case. it made it easy for the police. all they had to do was to give the forewarning and they know -- knew that if they got a convention, it was ok.
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-- a confession, it was ok. one of the things about miranda and its staying power is that my old chief, chief justice rehnquist, was a great critic of miranda. when it came to the question -- should it be overruled -- he wrote the decision that said no, miranda has become part of our culture, part of the way police must be paid. -- behave and this court will adhere to miranda. i think that was a decision of major importance. you wanted two more -- griswald? that was the case that said -- it was a connecticut law -- banning the use of contraceptives is
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unconstitutional. griswald started the line that ended with roe vs wade. i would rank that the case of major importance. >> [inaudible] >> yes. it was not that long ago. the first time that question came to the court was a case versus the commonwealth of virginia it was a frontal attack on tel law that made consentual sodomy a crime. lawrence v texas was not the
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kind of a grandstand play. it involved flesh and blood real people. it was a story that could be told. the court in lawrence v texas held that the texas law, making consentual sodomy criminal, was unconstitutional. one of the reasons i am fond of that decision which was written by justice kennedy was that he referred to a leading decision of the european court of human rights in that decision. i think the european court of human rights decision was in the early 1980's. he was saying that this is recognized as a human right by
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the european court and how out of it could the united states to
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be? [laughter] not to recognize this. justice kennedy has been criticized for referring to foreign law. but i think he did just the right thing in acknowledging that there are other places in the world interested in the promotion of human rights and we should listen and learn from them. [applause] i think we have five. >> i would like to get more questions from the audience. i would like to get more questions from the audience. go ahead. >> what advice would you give a young woman in the law profession? what can we learn from your personal experience as a member of the bar and the bench? >> the major thing is something i try to -- i tried to impart last night. i have had endless satisfaction from everything i have done in the the olaw from being a law student to a lawyer, to a law teacher. but always, i did something other than what i was paid to do. if you have a skill that will
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enable you to make things a little better for your community or your state or your world, this is the skill that you will achieve, attending law school, i hope that all of you will spend part of your time thinking about people who need your help and offering it. to them. jennifer has had her last question and now we can -- [applause] [laughter] >> would you like to use the microphone? if everybody would like to make justice ginsburg's wish to come true, i have a petition to get
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the equal rights amendment -- if we get enough signatures to go to the white house, if you would like to pile on this -- this revitalizes the 1972 equal rights amendment to extend the deadline. there is some revitalization in an earlier form. >> this has the overwhelming support of the public. >> do we have any more questions? >> i have a question on free speech. there was a protesters in a trade.
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he was talking about abortion and many other things and we think that should be limited. how do you feel about that? >> i was sitting where you were. i was not up in the tree. [laughter] looking around the world at countries that punish speech that is out of the accord with the thinking of the powers that be, i am glad that we prize speech. protect even the speech we hate. one concern of the police was to get him down from the tree
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without being injured. we have protests at the court all the time. don't get to see them because my chambers are in the back but just as elena kagan as a front row seat. for every demonstration. as long as they are not endangering anyone to safety, i hope that we will continue to preserve their right to speak -- to speech that we don't like. [applause] i want to tell you about one incident --
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justice brennan, a truly great justice, died and he was a good catholic. there was a funeral mass for him and there were protesters protesting that he was getting a catholic burial when he had devoted for the eighth full decision roe v. wade. i was thinking to my itself, what would he have said, justice brennan? he would say let them demonstrate. are just exercising their first amendment rights. -- they are just exercising their first amendment rights. >> i think that is the 6:00 alarm. [laughter] anyway, continue on, i am so sorry i thought i shut my telephone off.
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i have been told by the powers that be that the session is over but there is good news -- there will be a reception from 6:00- 7:00 outside this classroom, this auditorium, and if you have any specific questions, i'm sure justice ginsburg will be happy to answer them. thank you all for such great questions. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> there will be a question and answer -- >> coming up this morning on c- span 2, erskine bowles will
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discuss the federal budget, spending and the automatic cuts that will take place on march 1. he will sit down with mike allen of "politico"that it o'clock 30 eastern. -- at 8:30 eastern. we will have "washington journal" in a moment. business leaders would talk about higher education priorities live from the u.s. chamber of commerce at 10:00 eastern. later in the day, it looked at canada-u.s. relations with the canadian ambassador to the u.s. in his state of the union speech, president obama talks about raising the minimum wage. in 45 minutes, we'll talk about how it would affect the economy with a "york times"record year. -- with a

Politics Public Policy Today
CSPAN February 19, 2013 6:00am-7:00am EST


TOPIC FREQUENCY Us 11, Texas 6, Sonia Sotomayor 3, Elena Kagan 3, New York 3, Washington 3, Marshall 2, Gore 2, United 2, United States 2, Brennan 2, Sandra Day O'connor 2, Ginsburg 2, Virginia 2, California 2, U.s. 2, Miranda 2, The Nation 1, United Kingdom 1, O'connor 1
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